024-SLLR-SLLR-2005-V-1-MITRAPALA-AND-ANOTHER-vs.-TIKONIS-SINGHO.pdf
MITRAPALAAND ANOTHERVS
TIKONISSINGHO
COURT OF APPEAL,
DISSANAYAKE J. ANDSOMAWANSAJ.,
A 461/94
C KALUTARA 6023/P
JULY 24, AND OCTOBER 28, 2003
Partition action – Prescriptive rights – Transfer by a minor – Assisted contract -Void or voidable? – Repudiation by minor – Transfer to third party after attainingmajority – Validity – Prescription Ordinance, sections 3 and 10-Usufructuarymortgagee – Can he claim prescriptive rights? – Burden of proof
The plaintiff respondent instituted action to partition the land in question. The2nd, 3rd defendant appellants prayed for dismissal of the action and the 3rddefendant appellant based his claim on having acquired prescriptive title tothe corpus, having entered possession of the land as a usufructuary mortgageof S and D who figure in the chain of title of the plaintiff respondent. Thedefendant appellant further contended that when deed P2,( deed of theplaintiff) was executed the transferor 'L' was a minor and subsequently he hadtransferred the land to the 3rd defendant appellant and further contended thathis deed will prevail over P 2 the deed of the plaintiff. The learned DistrictJudge accepted the pedigree of the plaintiff respondent and entered judgmentaccordingly.
Held:
Dealings by a minor with his properly are not ipso jure void, but onlyvoidable at his instance.
A minor is entitled to repudiate a contract affecting his rights only to theextent of his interests in the subject matter of the contract. Repudiation may beeither by the guardian during minority, or by the minor during or after minority.
206Sri Lanka Law Reports(2005) 1 Sri L. R.
CAMitrapala and Another vs207
Tikonis Singho (Dissanayake, J.) .
If the minor decides to seek court intervention he must do so withinthree years of attaining majority.
Minor L has received consideration in respect of Deed P2. His fatherwho is his natural guardian too joined him in the deed. He had the assistanceof the natural guardian. It was an assisted contract.
Minor L had not taken any steps to repudiate the contract on account ofhis alleged minority. No rights flow on the sacond deed.
A Usufructuary mortgagee when he enters the land as a usufructuarymortgagee possesses the land as a licensee under the mortgagor. Theusufructory mortgagee cannot claim prescriptive title as against his mortgageewho had put him in possession.
Mere possession is not prescriptive title. He must prove that he hadpossessed the property in the manner and for the period set out in section 3of the Prescription Ordinance.
Where a party invokes the provisions of section 3 in order to defeat theownership of the adverse claimant to immovable property the burden of proofrests squarely and fairly on him to establish a starting point for his or heracquistion of prescriptive rights.
APPEAL from the judgment of the District Court of KalutaraCases referred to .
Silva vs Mohamadu -19 NLR 426
Braytenback vsFrankel-South African Law Reports -1913 App. Div. 390
Wickremasinghe vs Josephine Silva – 63 NLR 569
41 C. L. W. 51
Belagas Kaduwa vs Ukku Banda – 43 NLR 281 at 282
CA 418/2002 – D. C. Kuliyapitiya 11335/P
Sirajudeen and others vs Abbas – 1995 – 1 Sri LR 365
Chelliah vs Wijenathan – 54 NLR 337, 342
Ranjan Mendis with Chamath Dahanayake for 2nd and 3rd defendantappellants
V. P. Tilakaratna for plaintiff respondent
20SSri Lanka Law Reports(2005) 1 Sri L. R.
Cur. adv.vult.
January 30,2004DISSANAYAKE, J.
The plaintiff – respondent instituted this action seeking a partition of theland called “Galpoththahena” lot No.3 morefully described in the scheduleto the plaint and depicted as lot 1 in plan bearing No. 159 of Commissioner
K.D. L. Wijenayake (X)
The contesting 2nd and 3rd defendants – appellants by their jointstatement of claim, whilst denying the averments in the plaint prayed fordismissal of the action. Further the 3rd defendant – appellant based hisclaim on having acquired prescriptive title to the corpus from 18. 07.1957 having entered possession of the land as usufructuary mortgageeof K. P. Appu Singho and K. D. Dharmasena, who figure in the chain oftitle of the plaintiff – respondent.
The case proceeded to trial on 11 points of contest and at the conclusionof the trial the learned District Judge entered judgment ordering interlocutorydecree to be entered allotting 1/2 share each of the corpus to the plaintiff- respondent and the 1 st defendant respondent and allotting the plantationsand improvements to the 3rd defendant – appellant.
It is from the aforesaid judgment that this appeal has been preferred.
The following matters were recorded as admissions at thecommencement of the trial.
There was no corpus dispute. It was agreed by the parties that theland to be partitioned is depicted in plan No. 159 of licensed surveyor K.D. L. Wijenayake dated 07 and 14.05.1992.
That the said land was allotted to Pothupitiyage Podinona inDistrict Court of Kalutara case No. 13737 Partition.
That the said rights of Pothupitiyage Podinona vested on LawrenceLeelasena by virtue of deed No. 1605 dated 29. 05.1945.
Podinona who thus became the owner of the land in suit marriedKottagodage Appu Singho. The said Pothupitiyage Podinona died leavingas her heirs, Appu Singho the husband and a son Dharmasena.
Appu Singho and Dharmasena by deed No. 1605 dated 29. 05. 1945(PI) gifted the corpus to K. Don Lawrence Leelasena.
CAMitrapala and Another vs-209
Tikonis Singho (Dissanayake, J.)
Don Lawrence Leelasena and his father Dharmasena by deed No. 101of 08. 05. 1962 (P2) sold the land in suit to S. A. Kotagoda the 1stdefendant – respondent.
The 1 st defendant – respondent S. A. Kottagoda by deed No. 1067 of06.02.1971 (land registry extract P3) transferred same to the plaintiff-respondent.
It was the position taken by the contesting 2nd and 3rd defendants -apellants that at the time deed No. 101 (P2) was executed LawrenceLeelasena was a minor. Therefore.the said sale on deed 101 (p2) to S. A.Kottagoda, the 1st defendant-respondent is null and void on account ofthe minority of Lawrence Leelasena. It was the position of the 2nd and3rd defendants appellants that Lawrence Leelasena by deed No. 1435dated 19.11.1965 had sold and transferred the corpus to the 3rd defendant-appellant (Land registry extract P3).
It was the position of the contesting 2nd and 3rd defendants appellantsthat despite deed No. 101 (p2) being registered in the land registry,(extract P3) prior to the subsequent deed bearing No. 143 of LawrenceLeelasena, however that since deed No. 101 (P2) was null and void onaccount of the minority of Lawrence Leelasena, that his subsequent deedbearing No. 1435 will prevail and on that deed the corpus shall vest on the3rd defendant – appellant.
I shall examine the validity of the aforesaid contention of the contesting2nd and 3rd defendants – appellants presently.
Professor Weeramantry in his book The Law of Contracts Volume I,1967 edition section 416 at page 422 states:
• “ This view prevailed till 1916 in which year the Supreme Court in Silva
vs Mohamedu followed the ruling in the South African case of
Braytenbach vs Frankela case decided in South Africa by a bench
of five judges including Lord De Villiers and Chief Justice Maadorp.
This case decided that a dealing by a minor with his property was notipso jure void but only voidable at his instance. Later Ceylon cases havetaken the same view “Vide Wickramasinghe vs Josephine Silva3)"
210Sri Lanka Law Reports(2005) i Sri L. R.
Lawrence Leelasena has received consideration in respect of deed No.101. He had failed to bring to the notice of the 1st defendant respondentthat he was a minor. Don Lawrence Leelasena did not execute deed No.101 (P2) all by himself. His father who is his natural guardian Dharmasenatoo joined him in this deed. In other words Leelasena had the assistanceof his natural guardian, his father Dharmasena to this contract. It cannotbe said that it was an unassisted contract. The sale had the ratification ofhis father Dharmasena who had also signed deed No. 101 (P2).
Dealing with repudiation of a contract by a minor C.G. Weeramantrystates at page 417 of his book. The Law of Contracts Vol 1,1967 edition.”“A minor is entitled to repudiate a contract affecting his rights only to theextent of his interests in the subject matter of the contract.” Repudiationmay be either by the guardian during minority or by the minor during orafter minority .
“In cases where the minor decides to seek Court intervention he mustdo so within three years of attaining majority (Silva Vs Mohamadu (Supra)(Belagaskatuwa Vs Ukkubanda )
The Prescription Ordinance No. 20 of 1871 provides that no actionshall be maintainable in respect of any cause of action not expresslyprovided for in the Ordinance, unless the same shall be commencedwithin three years from the time when the cause of action shall haveaccrued. (Section 10) An action by a minor for restitution is not amongthose matters specifically provided for by the Ordinance and therefore isgoverned by this general section.”
Leelasena had not taken any steps to repudiate the contract on accountof his alleged minority.
Therefore no rights flow on Leelasena's deed bearing No. 1435 (landregistry extract P3) to the 3rd defendant appellant as deed No. 1435 isregistered subsequent to Leelasena’s earlier deed No. 101 (p2) in thebook of registration of the land registry.
Now I propse to deal with the alleged prescriptive possession of thecorpus by the contesting 3rd defendant – appellant.
The plaintiff – respondent testified to the fact that the land was notpossessed by anyone. He stated that the plantation of rubber, godapora,milla and other plantation have grown in the wilderness. He was emphatic
r.Mitrapala and Another vs211
UATikonis Singho Dissanayake, J.
that no one systematically engaged in plantation of the corpus." Howeverhe conceded that a well has been sunk by.the 3rd defendant – appellantabout 3 years ago.
On the contrary the 3rd defendant – appellant was emphatic that heobtained an usufractuay mortgage from Appu Singho and Dharmasenaby deed No. 4630 on 18. 02; 1957 (3 V19) and entered into possessionas a'usufructury mortgagee and since then possessed the land and hadacquired a prescriptive title to the land in suit.
It is to be observed that a usufructuary mortgagee when he enters theland as a usufructury mortgagee, he possess the land as a licencee underthe mortgagor. The usufructuary mortgagee cannot claim prescriptive titleas against his mortgagor who had put him in possession.
Therefore the possession of the 3rd defendant – appellant if at all of thecorpus should have been qua usufructuary mortgagee and not as owner.Therefore the 3rd defendant – appellant as an usufructorary mortgageecannot claim adverse possession as against his mortgagors, Appu Singhoand his son Dharmasena.
It is pertinent to refer to a decision of on unreported case of this Courtin this regard. In the Court of Appeal No. 418/2002 (6) judgement it hasbeen held “But mere possession is not prescriptive title. A person inpossession who claims title by virtue of prescription must prove that hehad possessed the property in the manner and for the period set out insection 3 of the Prescription Ordinance”.
Section 3 of the Prescription Ordinance reads as follows: –
Proof of the undisturbed and uninterrupted possession by a defendantin any action, or by those under whom he claims, of lands or immovableproperty, by title adverse to or independent of that of the claimant orplaintiff in such action (that is to say, a possession unaccompanied bypayment of rent or produce, or performance of service or duty or by anyother act by the possessor, from whicn an acknkowledgemerit of a rightexisting in another person would fairly and naturally be inferred) for tenyears previous to the bringing ofsuch action, shall entitle tne defendantto a decree in his favour with costs. And or like manner, when any plaintiffshall bring his action or any third party shall intervene in any action forthe purpose of being quitted in his possession of lands cr other immovableproperty or to prevent encroachment or usurpation thereof, or to establishhis claim in any other manner to such land or other property, proof of such
2 – CM 541 u
212Sri Lanka Law Reports(2005) ! Sri L. R.
undisturbed and uninterrupted possession as herein before explained, bysuch plaintiff or intervenient or by those under whom be claims shall entitlesuch plaintiff or intervenient to a decree in his favour with costs, (emphasisadded)
It is relevant to refer to the observations of His Lordship G. P. S. deSliva, C. J. at page 370 in Sirajudeen and 2 others Vs Abbas{7]
He observed:- “But what needs to be stressed is that the fact ofoccupation alone would not suffice to satisfy the provisions of section 3of the Prescription Ordinance. One of the essential elements of the pleaof prescriptive title as provided for in section 3 of the Prescription Ordinanceis proof of possession” by a title adverse to or independent of that of theclaimant or plaintiff
There is another relevant aspect of the plea of prescription title whichwas overlooked by the trial judge. That principle is best stated in thewords of Gratiaen J., In Chelliah Vs Wijenathan “where a party invokesthe provisions of section 3 of the Prescription Ordinance in order todefeat the ownership of an adverse claimant to immovabel property, theburden of proof rests squarely and fairly on him to establish a startingpoint for his or her acquisition of prescriptive rights.”
To claim prescriptive possession successfully by undisturbed anduninterrupted possession by the defendant has to be under the principlesof law discussed as above.
The possession of the 3rd defendant – appellant in the capacity of anusufructuary mortgagee will not give him any rights to claim prescriptivepossession as he possess the land not as an independent possessorbut as a licencee of the mortgagor.
Having examined the pleadings: the evidence and the judgment of thelearned District Judge, I find that there is no basis for this Court tointerfere with the judgement of the learned District Judge.
I dismiss the appeal of the 2nd and 3rd defendants – appellants withcosts fixd at Rs. 5000.
SOMAWANSA, J — I agree.
Appeal dismissed